Ramelli

— The controversy in this case is as to the respective rights of the parties thereto to divert and use for purposes of irrigation the natural waters of a small stream in El Dorado County, known as Slate Creek. Each party alleges that his right to the said waters is prior and superior to that of the other.

At the trial, when the plaintiff rested his case, the defendant moved for a nonsuit, upon the grounds: “ That plaintiff has failed to show that at the time the water was diverted from the bed of the stream by the defendant, the quantity of water at head of plaintiff’s ditch was thereby diminished; that the evidence given shows that the defendant was lawfully entitled, as riparian proprie *215 tor, to the water diverted by him, and that none of the waters have been diverted away from the stream; that the evidence given does not show that the plaintiff was entitled to any of the waters diverted by the defendant.”

The court granted the motion, and the plaintiff thereupon appealed from the judgment.

The facts proved were, in substance, as follows: Slate Creek runs through land owned by defendant, and to which he acquired title from the government by a homestead patent in April,…